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EXHIBIT 3.4
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AT&T LATIN AMERICA CORP.
(formerly Kiri Inc.)
AMENDMENT AND RESTATEMENT OF BY-LAWS
As Adopted on December 6, 1999
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AT&T LATIN AMERICA CORP.
(formerly Kiri Inc.)
AMENDMENT AND RESTATEMENT OF BY-LAWS
TABLE OF CONTENTS
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SECTION PAGE
ARTICLE I
STOCKHOLDERS
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Section 1.01. Annual Meetings...........................................................................1
Section 1.02. Special Meetings..........................................................................1
Section 1.03. Notice of Meetings; Waiver................................................................1
Section 1.04. Quorum....................................................................................2
Section 1.05. Voting....................................................................................2
Section 1.06. Voting by Ballot..........................................................................3
Section 1.07. Adjournment...............................................................................3
Section 1.08. Proxies...................................................................................3
Section 1.09. Organization; Procedure...................................................................4
Section 1.10. Shareholder Action........................................................................4
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers............................................................................4
Section 2.02. Number and Term of Office.................................................................4
Section 2.03. Election of Directors; Chair..............................................................4
Section 2.04. Annual and Regular Meetings...............................................................5
Section 2.05. Special Meetings; Notice..................................................................5
Section 2.06. Quorum; Voting............................................................................5
Section 2.07. Adjournment...............................................................................6
Section 2.08. Action Without a Meeting..................................................................6
Section 2.09. Regulations; Manner of Acting.............................................................6
Section 2.10. Action by Telephonic Communications.......................................................6
Section 2.11. Resignations..............................................................................6
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Section 2.12. Removal of Directors......................................................................6
Section 2.13. Vacancies and Newly Created Directorships.................................................7
Section 2.14. Compensation..............................................................................7
Section 2.15. Reliance on Accounts and Reports, etc.....................................................7
ARTICLE III
COMMITTEES
Section 3.01. How Constituted...........................................................................7
Section 3.02. Powers....................................................................................8
Section 3.03. Proceedings...............................................................................9
Section 3.04. Quorum and Manner of Acting...............................................................9
Section 3.05. Action by Telephonic Communications.......................................................9
Section 3.06. Absent or Disqualified Members............................................................9
Section 3.07. Resignations..............................................................................9
Section 3.08. Removal...................................................................................9
Section 3.09. Vacancies................................................................................10
ARTICLE IV
OFFICERS
Section 4.01. Number...................................................................................10
Section 4.02. Election.................................................................................10
Section 4.03. Salaries.................................................................................10
Section 4.04. Removal and Resignation; Vacancies.......................................................10
Section 4.05. Authority and Duties of Officers.........................................................11
Section 4.06. The President............................................................................11
Section 4.07. The Secretary............................................................................11
Section 4.08. The Treasurer............................................................................12
Section 4.09. Additional Officers......................................................................13
Section 4.10. Security.................................................................................13
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock, Uncertificated Shares.............................................14
Section 5.02. Signatures; Facsimile....................................................................14
Section 5.03. Lost, Stolen or Destroyed Certificates...................................................14
Section 5.04. Transfer of Stock........................................................................15
Section 5.05. Record Date..............................................................................15
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Section 5.06. Registered Stockholders..................................................................15
Section 5.07. Transfer Agent and Registrar.............................................................16
ARTICLE VI
INDEMNIFICATION
Section 6.01. Nature of Indemnity......................................................................16
Section 6.02. Successful Defense.......................................................................17
Section 6.03. Determination That Indemnification Is Proper.............................................17
Section 6.04. Advance Payment of Expenses..............................................................18
Section 6.05. Procedure for Indemnification of Directors and Officers..................................18
Section 6.06. Survival; Preservation of Other Rights...................................................19
Section 6.07. Insurance................................................................................19
Section 6.08. Severability.............................................................................19
ARTICLE VII
OFFICES
Section 7.01. Registered Office........................................................................20
Section 7.02. Other Offices............................................................................20
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends................................................................................20
Section 8.02. Reserves.................................................................................21
Section 8.03. Execution of Instruments.................................................................21
Section 8.04. Corporate Indebtedness...................................................................21
Section 8.05. Deposits.................................................................................21
Section 8.06. Checks...................................................................................22
Section 8.07. Sale, Transfer, etc. of Securities.......................................................22
Section 8.08. Voting as Stockholder....................................................................22
Section 8.09. Fiscal Year..............................................................................22
Section 8.10. Seal.....................................................................................22
Section 8.11. Books and Records; Inspection............................................................22
ARTICLE IX
CERTAIN TRANSACTIONS
Section 9.01. General..................................................................................23
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Section 9.02. Affiliated Party Transactions............................................................23
ARTICLE X
AMENDMENT OF BY-LAWS
Section 10.01. Amendment...............................................................................24
ARTICLE XI
CONSTRUCTION
Section 11.01. Construction............................................................................24
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AT&T LATIN AMERICA CORP.
(formerly Kiri Inc.)
BY-LAWS
As adopted on December 6, 1999
ARTICLE I
STOCKHOLDERS
Section 1.01. ANNUAL MEETINGS. The annual meeting of the
stockholders of the Corporation for the election of directors and for the
transaction of such other business as properly may come before such meeting
shall be held at such place, either within or outside the State of Delaware, and
at 9:00 a.m. local time on the fifteenth of May (or, if such day is a legal
holiday, then on the next succeeding business day), or at such other date and
hour, as may be fixed from time to time by resolution of the Board of Directors
and set forth in the notice or waiver of notice of the meeting.
Section 1.02. SPECIAL MEETINGS. Special meetings of the
stockholders may be called at any time by the President (or, in the event of his
or her absence or disability, by any Vice President), or by the Board of
Directors. A special meeting shall be called by the President (or, in the event
of his or her absence or disability, by any Vice President), or by the
Secretary, immediately upon receipt of a written request therefor by
stockholders holding in the aggregate not less than a majority of the
outstanding shares of the Corporation at the time entitled to vote at any
meeting of the stockholders. If such officers or the Board of Directors shall
fail to call such meeting within twenty days after receipt of such request, any
stockholder executing such request may call such meeting. Such special meetings
of the stockholders shall be held at such places, within or outside the State of
Delaware, as shall be specified in the respective notices or waivers of notice
thereof.
Section 1.03. NOTICE OF MEETINGS; WAIVER. The Secretary or any
Assistant Secretary shall cause written notice of the place, date and hour of
each meeting of the stockholders, and, in the case of a special meeting, the
purpose or purposes for which such meeting is called, to be given personally or
by mail, not less than ten nor more than sixty days prior to the meeting, to
each stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder
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when deposited in the United States mail, postage prepaid, directed to the
stockholder at his or her address as it appears on the record of stockholders of
the Corporation, or, if he or she shall have filed with the Secretary of the
Corporation a written request that notices to him or her be mailed to some other
address, then directed to him or her at such other address. Such further notice
shall be given as may be required by law.
No notice of any meeting of stockholders need be given to any
stockholder who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in a written
waiver of notice. The attendance of any stockholder at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the stockholder
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Section 1.04. QUORUM. Except as otherwise required by law or
by the Certificate of Incorporation, the presence in person or by proxy of the
holders of record of one-third of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. For purposes of calculating pursuant to this Section 1.04 the number of
shares entitled to vote at a meeting of stockholders, each share of Class A
Common Stock and Class B Common Stock shall be counted equally.
Section 1.05. VOTING. If, pursuant to Section 5.05 of these
By-Laws, a record date has been fixed, (a) every holder of record of a share of
Class A Common Stock entitled to vote at a meeting of stockholders shall be
entitled to one vote for each such share outstanding in his or her name on the
books of the Corporation at the close of business on such record date and (b)
every holder of record of a share of Class B Common Stock entitled to vote at a
meeting of stockholders shall be entitled to ten votes for each such share
outstanding in his or her name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then (x) every
holder of record of a share of Class A Common Stock entitled to vote at a
meeting of stockholders shall be entitled to one vote for each such share of
stock standing in his or her name on the books of the Corporation at the close
of business on the day next preceding the day on which notice of the meeting is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held and (y) every holder of record of
a share of Class B Common Stock entitled to vote at a meeting of stockholders
shall be entitled to ten votes for each such share of stock standing in his or
her name on the books of the Corporation at the close of business on the day
next
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preceding the day on which notice of the meeting is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. Except as otherwise required by law or by the Certificate of
Incorporation or by these By-Laws, a majority of the votes of shares represented
in person or by proxy at any meeting at which a quorum is present shall be
sufficient for the transaction of any business at such meeting.
Section 1.06. VOTING BY BALLOT. No vote of the stockholders
need be taken by written ballot unless otherwise required by law. Any vote which
need not be taken by ballot may be conducted in any manner approved by the
meeting.
Section 1.07. ADJOURNMENT. If a quorum is not present at any
meeting of the stockholders, the stockholders present in person or by proxy
shall have the power to adjourn any such meeting from time to time until a
quorum is present. Notice of any adjourned meeting of the stockholders of the
Corporation need not be given if the place, date and hour thereof are announced
at the meeting at which the adjournment is taken, provided, however, that if the
adjournment is for more than thirty days, or if after the adjournment a new
record date for the adjourned meeting is fixed pursuant to Section 5.05 of these
By-Laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.03 of these By-Laws, shall be given to each stockholder of record
entitled to vote at such meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted that might have been transacted on the
original date of the meeting.
Section 1.08. PROXIES. Any stockholder entitled to vote at any
meeting of the stockholders may authorize another person or persons to vote at
any such meeting for him or her by proxy. A stockholder may authorize a valid
proxy by executing a written instrument signed by such stockholder, or by
causing his or her signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature, or by transmitting
or authorizing the transmission of a telegram, cablegram or other means of
electronic transmission to the person designated as the holder of the proxy, a
proxy solicitation firm or a like authorized agent. No such proxy shall be voted
or acted upon after the expiration of three years from the date of such proxy,
unless such proxy provides for a longer period. Every proxy shall be revocable
at the pleasure of the stockholder executing it, except in those cases where
applicable law provides that a proxy shall be irrevocable. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or by filing
another duly executed proxy bearing a later date with the Secretary. Proxies by
telegram, cablegram or other electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram,
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cablegram or other electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of a
writing or transmission created pursuant to this section may be substituted or
used in lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section 1.09. ORGANIZATION; PROCEDURE. At every meeting of
stockholders the presiding officer shall be the President or, in the event of
his or her absence or disability, a presiding officer chosen by a majority of
the stockholders present in person or by proxy. The Secretary, or in the event
of his or her absence or disability, the Assistant Secretary, if any, or if
there be no Assistant Secretary, in the absence of the Secretary, an appointee
of the presiding officer, shall act as Secretary of the meeting. The order of
business and all other matters of procedure at every meeting of stockholders may
be determined by such presiding officer.
Section 1.10. SHAREHOLDER ACTION. Any action required or
permitted to be taken under law by the stockholders of the Corporation shall be
effected at a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. GENERAL POWERS. Except as may otherwise be
provided by law, by the Certificate of Incorporation or by these By-Laws, the
property, affairs and business of the Corporation shall be managed by or under
the direction of the Board of Directors and the Board of Directors may exercise
all the powers of the Corporation.
Section 2.02. NUMBER AND TERM OF OFFICE. The number of
Directors constituting the entire Board of Directors shall be up to six. Each
Director (whenever elected) shall hold office until his or her successor has
been duly elected and qualified, or until his or her earlier death, resignation
or removal.
Section 2.03. ELECTION OF DIRECTORS; CHAIR. Except as
otherwise provided in Sections 2.12 and 2.13 of these By-Laws, the Directors
shall be elected at each annual meeting of the stockholders. If the annual
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meeting for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter as
convenient. At each meeting of the stockholders for the election of Directors,
provided a quorum is present, the Directors shall be elected by a plurality of
the votes validly cast in such election.
Section 2.04. ANNUAL AND REGULAR MEETINGS. The annual meeting
of the Board of Directors for the purpose of electing officers and for the
transaction of such other business as may come before the meeting shall be held
as soon as possible following adjournment of the annual meeting of the
stockholders at the place of such annual meeting of the stockholders. Notice of
such annual meeting of the Board of Directors need not be given. The Board of
Directors from time to time may by resolution provide for the holding of regular
meetings and fix the place (which may be within or outside the State of
Delaware) and the date and hour of such meetings. Notice of regular meetings
need not be given, provided, however, that if the Board of Directors shall fix
or change the time or place of any regular meeting, notice of such action shall
be mailed promptly, or sent by telegram, radio or cable, to each Director who
shall not have been present at the meeting at which such action was taken,
addressed to him or her at his or her usual place of business, or shall be
delivered to him or her personally. Notice of such action need not be given to
any Director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him or her, prior to or at the com
mencement of such meeting, or to any Director who submits a signed waiver of
notice, whether before or after such meeting.
Section 2.05. SPECIAL MEETINGS; NOTICE. Special meetings of
the Board of Directors shall be held whenever called by (i) the President or, in
the event of his or her absence or disability, by any Vice President, or (ii)
any three Directors, at such place (within or outside the State of Delaware),
date and hour as may be specified in the respective notices or waivers of notice
of such meetings. Special meetings of the Board of Directors may be called on
twenty-four hours' notice, if notice is given to each Director personally or by
telephone or telegram, or on five days' notice, if notice is mailed to each
Director, addressed to him or her at his or her usual place of business. Notice
of any special meeting need not be given to any Director who attends such
meeting without protesting the lack of notice to him or her, prior to or at the
commencement of such meeting, or to any Director who submits a signed waiver of
notice, whether before or after such meeting, and any business may be transacted
thereat.
Section 2.06. QUORUM; VOTING. At all meetings of the Board of
Directors, the presence of a majority of the total authorized number of
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Directors shall constitute a quorum for the transaction of business. Except as
otherwise required by law, the vote of a majority of the entire Board of
Directors shall be required for an act of the Board of Directors.
Section 2.07. ADJOURNMENT. A majority of the Directors
present, whether or not a quorum is present, may adjourn any meeting of the
Board of Directors to another time or place. No notice need be given of any
adjourned meeting unless the time and place of the adjourned meeting are not
announced at the time of adjournment, in which case notice conforming to the
requirements of Section 2.05 of these By-Laws shall be given to each Director.
Section 2.08. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing, and such writing or writings are filed with the minutes of proceedings
of the Board of Directors.
Section 2.09. REGULATIONS; MANNER OF ACTING. To the extent
consistent with applicable law, the Certificate of Incorporation and these
By-Laws, the Board of Directors may adopt such rules and regulations for the
conduct of meetings of the Board of Directors and for the management of the
property, affairs and business of the Corporation as the Board of Directors may
deem appropriate. The Directors shall act only as a Board, and the individual
Directors shall have no power as such.
Section 2.10. ACTION BY TELEPHONIC COMMUNICATIONS. Members of
the Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this provision shall constitute presence
in person at such meeting.
Section 2.11. RESIGNATIONS. Any Director may resign at any
time by delivering a written notice of resignation, signed by such Director, to
the President or the Secretary. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
Section 2.12. REMOVAL OF DIRECTORS. Any Director may be
removed at any time, either for or without cause, upon the affirmative vote of
the holders of a majority of the outstanding shares of stock of the Corporation
entitled to vote for the election of such Director. Any vacancy in the Board of
Directors caused by any such removal may be filled at such meeting by the
stockholders entitled to vote for the election of the Director so removed. If
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such stockholders do not fill such vacancy at such meeting (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting), such vacancy may be filled in the manner provided in Section
2.13 of these By-Laws.
Section 2.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If
any vacancies shall occur in the Board of Directors, by reason of death,
resignation, removal or otherwise, or if the authorized number of Directors
shall be increased, the Directors then in office shall continue to act, and such
vacancies and newly created directorships may be filled by a majority of the
Directors then in office, although less than a quorum. A Director elected to
fill a vacancy or a newly created directorship shall hold office until his or
her successor has been elected and qualified or until his or her earlier death,
resignation or removal. Any such vacancy or newly created directorship may also
be filled at any time by vote of the stockholders.
Section 2.14. COMPENSATION. The amount, if any, which each
Director shall be entitled to receive as compensation for his or her services as
such shall be fixed from time to time by resolution of the Board of Directors.
Section 2.15. RELIANCE ON ACCOUNTS AND REPORTS, ETC. A
Director, or a member of any Committee designated by the Board of Directors
shall, in the performance of his or her duties, be fully protected in relying in
good faith upon the records of the Corporation and upon information, opinions,
reports or statements presented to the Corporation by any of the Corporation's
officers or employees, or Committees designated by the Board of Directors, or by
any other person as to the matters the member reasonably believes are within
such other person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
ARTICLE III
COMMITTEES
Section 3.01. HOW CONSTITUTED. The Board of Directors may
designate one or more Committees, including an Audit Committee, Nominating
Committee, and Compensation Committee, each such Committee to consist of such
number of Directors as from time to time may be fixed by the Board of Directors.
The Board of Directors may designate one or more Directors as alternate members
of any such Committee, who may replace any absent or disqualified member or
members at any meeting of such Committee. Thereafter, members (and alternate
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members, if any) of each such Committee may be designated at the annual meeting
of the Board of Directors. Any such Committee may be abolished or re-designated
from time to time by the Board of Directors. Each member (and each alternate
member) of any such Committee (whether designated at an annual meeting of the
Board of Directors or to fill a vacancy or otherwise) shall hold office until
his or her successor shall have been designated or until he or she shall cease
to be a Director, or until his or her earlier death, resignation or removal.
Section 3.02. POWERS. Each such Committee, except as otherwise
provided in this section, shall have and may exercise such powers of the Board
of Directors as may be provided by resolution or resolutions of the Board of
Directors. No Committee shall have the power or authority:
(a) to amend the Certificate of Incorporation (except that a
Committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by
the Board of Directors as provided in Section 151(a) of the General
Corporation Law, fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolu tion,
any distribution of assets of the Corporation or the conversion into,
or the exchange of such shares for, shares of any other class or
classes or any other series of the same or any other class or classes
of stock of the Corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any
series);
(b) to adopt an agreement of merger or consolidation;
(c) to recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and
assets;
(d) to recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution; and
(e) to amend the By-Laws of the Corporation.
Any Committee may be granted by the Board of Directors the power to authorize
the seal of the Corporation to be affixed to any or all papers which may require
it.
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Section 3.03. PROCEEDINGS. Each such Committee may fix its own
rules of procedure and may meet at such place (within or outside the State of
Delaware), at such time and upon such notice, if any, as it shall determine from
time to time. Each such Committee shall keep minutes of its proceedings and
shall report such proceedings to the Board of Directors at the meeting of the
Board of Directors next following any such proceedings.
Section 3.04. QUORUM AND MANNER OF ACTING. Except as may be
otherwise provided in the resolution creating such Committee, at all meetings of
any Committee the presence of members (or alternate members) constituting a
majority of the total authorized membership of such Committee shall constitute a
quorum for the transaction of business. The act of the majority of the members
present at any meeting at which a quorum is present shall be the act of such
Committee. Any action required or permitted to be taken at any meeting of any
such Committee may be taken without a meeting, if all members of such Committee
shall consent to such action in writing and such writing or writings are filed
with the minutes of the proceedings of the Committee. The members of any such
Committee shall act only as a Committee, and the individual members of such
Committee shall have no power as such.
Section 3.05. ACTION BY TELEPHONIC COMMUNICATIONS. Members of
any Committee designated by the Board of Directors may participate in a meeting
of such Committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting.
Section 3.06. ABSENT OR DISQUALIFIED MEMBERS. In the absence
or disqualification of a member of any Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
Section 3.07. RESIGNATIONS. Any member (and any alternate
member) of any Committee may resign at any time by delivering a written notice
of resignation, signed by such member, to the Chairman or the President. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Section 3.08. REMOVAL. Any member (and any alternate member)
of any Committee may be removed from his or her position as a member (or
alternate member, as the case may be) of such Committee at any time, either for
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or without cause, by resolution adopted by a majority of the whole Board of
Directors.
Section 3.09. VACANCIES. If any vacancy shall occur in any
Committee, by reason of disqualification, death, resignation, removal or
otherwise, the remaining members (and any alternate members) shall continue to
act, and any such vacancy may be filled by the Board of Directors.
ARTICLE IV
OFFICERS
Section 4.01. NUMBER. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors also may elect one or more Assistant
Secretaries and Assistant Treasurers in such numbers as the Board of Directors
may determine. Any number of offices may be held by the same person. No officer
need be a Director of the Corporation.
Section 4.02. ELECTION. Unless otherwise determined by the
Board of Directors, the officers of the Corporation shall be elected by the
Board of Directors at the annual meeting of the Board of Directors, and shall be
elected to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual meeting,
officers may be elected at any regular or special meeting of the Board of
Directors. Each officer shall hold office until his or her successor has been
elected and qualified, or until his or her earlier death, resignation or
removal.
Section 4.03. SALARIES. The salaries of all officers and
agents of the Corporation shall be fixed by the Board of Directors.
Section 4.04. REMOVAL AND RESIGNATION; VACANCIES. Any officer
may be removed for or without cause at any time by the Board of Directors. Any
officer may resign at any time by delivering a written notice of resignation,
signed by such officer, to the Board of Directors or the President. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by the Board of Directors.
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Section 4.05. AUTHORITY AND DUTIES OF OFFICERS. The officers
of the Corporation shall have such authority and shall exercise such powers and
perform such duties as may be specified in these By-Laws, except that in any
event each officer shall exercise such powers and perform such duties as may be
required by law.
Section 4.06. THE PRESIDENT. The President shall preside at
all meetings of the stockholders at which he or she is present, shall be the
chief executive officer and the chief operating officer of the Corporation,
shall have general control and supervision of the policies and operations of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He or she shall manage and administer the
Corporation's business and affairs and shall also perform all duties and
exercise all powers usually pertaining to the office of a chief executive
officer and a chief operating officer of a corporation. He or she shall have the
authority to sign, in the name and on behalf of the Corporation, checks, orders,
contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation, and together with the Secretary
or an Assistant Secretary, conveyances of real estate and other documents and
instruments to which the seal of the Corporation is affixed. He or she shall
have the authority to cause the employment or appointment of such employees and
agents of the Corporation as the conduct of the business of the Corporation may
require, to fix their compensation, and to remove or suspend any employee or
agent elected or appointed by the President or the Board of Directors. The
President shall perform such other duties and have such other powers as the
Board of Directors or the Chairman may from time to time prescribe.
Section 4.07. THE SECRETARY. The Secretary shall have the
following powers and duties:
(a) He or she shall keep or cause to be kept a record of all
the proceedings of the meetings of the stockholders and of the Board of
Directors in books provided for that purpose.
(b) He or she shall cause all notices to be duly given in
accordance with the provisions of these By-Laws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a
resolution of the Board of Directors, he or she shall furnish a copy of
such resolution to the members of such Committee.
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(d) He or she shall be the custodian of the records and of the
seal of the Corporation and cause such seal (or a facsimile thereof) to
be affixed to all certificates representing shares of the Corporation
prior to the issuance thereof and to all instruments the execution of
which on behalf of the Corporation under its seal shall have been duly
authorized in accordance with these By-Laws, and when so affixed he or
she may attest the same.
(e) He or she shall properly maintain and file all books,
reports, statements, certificates and all other documents and records
required by law, the Certificate of Incorporation or these By-Laws.
(f) He or she shall have charge of the stock books and ledgers
of the Corporation and shall cause the stock and transfer books to be
kept in such manner as to show at any time the number of shares of
stock of the Corporation of each class issued and outstanding, the
names (alphabetically arranged) and the addresses of the holders of
record of such shares, the number of shares held by each holder and the
date as of which each became such holder of record.
(g) He or she shall sign (unless the Treasurer, an Assistant
Treasurer or an Assistant Secretary shall have signed) certificates
representing shares of the Corporation the issuance of which shall have
been authorized by the Board of Directors.
(h) He or she shall perform, in general, all duties incident
to the office of secretary and such other duties as may be specified in
these By-Laws or as may be assigned to him or her from time to time by
the Board of Directors, or the President.
Section 4.08. THE TREASURER. The Treasurer shall be the chief
financial officer of the Corporation and shall have the following powers and
duties:
(a) He or she shall have charge and supervision over and be
responsible for the moneys, securities, receipts and disbursements of
the Corporation, and shall keep or cause to be kept full and accurate
records of all receipts of the Corporation.
(b) He or she shall cause the moneys and other valuable
effects of the Corporation to be deposited in the name and to the
credit of the Corporation in
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such banks or trust companies or with such bankers or other
depositaries as shall be selected in accordance with Section 8.05 of
these By-Laws.
(c) He or she shall cause the moneys of the Corporation to be
disbursed by checks or drafts (signed as provided in Section 8.06 of
these By-Laws) upon the authorized depositaries of the Corporation and
cause to be taken and preserved proper vouchers for all moneys
disbursed.
(d) He or she shall render to the Board of Directors or the
President, whenever requested, a statement of the financial condition
of the Corporation and of all his or her transactions as Treasurer, and
render a full financial report at the annual meeting of the
stockholders, if called upon to do so.
(e) He or she shall be empowered from time to time to require
from all officers or agents of the Corporation reports or statements
giving such information as he or she may desire with respect to any and
all financial transactions of the Corporation.
(f) He or she may sign (unless an Assistant Treasurer or the
Secretary or an Assistant Secretary shall have signed) certificates
representing stock of the Corporation the issuance of which shall have
been authorized by the Board of Directors.
(g) He or she shall perform, in general, all duties incident
to the office of treasurer and such other duties as may be specified in
these By-Laws or as may be assigned to him or her from time to time by
the Board of Directors, or the President.
Section 4.09. ADDITIONAL OFFICERS. The Board of Directors may
appoint such other officers and agents as it may deem appropriate, and such
other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as may be determined from time to
time by the Board of Directors. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint subordinate officers or
agents and to prescribe their respective rights, terms of office, authorities
and duties. Any such officer or agent may remove any such subordinate officer or
agent appointed by him or her, for or without cause.
Section 4.10. SECURITY. The Board of Directors may require any
officer, agent or employee of the Corporation to provide security for the
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faithful performance of his or her duties, in such amount and of such character
as may be determined from time to time by the Board of Directors.
ARTICLE V
CAPITAL STOCK
Section 5.01. CERTIFICATES OF STOCK, UNCERTIFICATED SHARES.
The shares of the Corporation shall be represented by certificates, provided
that the Board of Directors may provide by resolution or resolutions that some
or all of any or all classes or series of the stock of the Corporation shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until each certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock in the Corporation represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the Corporation, by the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary, representing the number of shares registered in
certificate form. Such certificate shall be in such form as the Board of
Directors may determine, to the extent consistent with appli cable law, the
Certificate of Incorporation and these By-Laws.
Section 5.02. SIGNATURES; FACSIMILE. All of such signatures on
the certificate referred to in Section 5.01 of these By-Laws may be a facsimile,
engraved or printed, to the extent permitted by law. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 5.03. LOST, STOLEN OR DESTROYED CERTIFICATES. The
Board of Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his or her legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate.
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Section 5.04. TRANSFER OF STOCK. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares, duly endorsed or accompanied by appropriate evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Within a reasonable time after the
transfer of uncertificated stock, the Corporation shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)
of the General Corporation Law of the State of Delaware. Subject to the
provisions of the Certificate of Incorporation and these By-Laws, the Board of
Directors may prescribe such additional rules and regulations as it may deem
appropriate relating to the issue, transfer and registration of shares of the
Corporation.
Section 5.05. RECORD DATE. In order to determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date on which the resolution
fixing the record date is adopted by the Board of Directors, and which shall not
be more than sixty nor less than ten days before the date of such meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting, provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights of the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 5.06. REGISTERED STOCKHOLDERS. Prior to due surrender
of a certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
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whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so.
Section 5.07. TRANSFER AGENT AND REGISTRAR. The Board of
Directors may appoint one or more transfer agents and one or more registrars,
and may require all certificates representing shares to bear the signature of
any such transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.01. NATURE OF INDEMNITY. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
or she is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer, of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, and may indemnify any person who was or
is a party or is threatened to be made a party to such an action, suit or
proceeding by reason of the fact that he or she is or was or has agreed to
become an employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding had no reasonable cause to
believe his or her conduct was unlawful; except that in the case of an action or
suit by or in the right of the Corporation to procure a judg ment in its favor
(1) such indemnification shall be limited to expenses (including attorneys'
fees) actually and reasonably incurred by such person in the defense or
settlement of such action or suit, and (2) no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
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Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper. Notwithstanding the foregoing,
but subject to Section 6.05 of these By-Laws, the Corporation shall not be
obligated to indemnify a director or officer of the Corporation in respect of a
Proceeding (or part thereof) instituted by such director or officer, unless such
Proceeding (or part thereof) has been authorized by the Board of Directors.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 6.02. SUCCESSFUL DEFENSE. To the extent that a present
or former director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 6.01 of these By-Laws or in defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
Section 6.03. DETERMINATION THAT INDEMNIFICATION IS PROPER.
Any indemnification of a present or former director or officer of the
Corporation under Section 6.01 of these By-Laws (unless ordered by a court)
shall be made by the Corporation only upon a determination that indemnification
of such person is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 6.01 of these By-Laws. Any
indemnification of a present or former employee or agent of the Corporation
under Section 6.01 of these By-Laws (unless ordered by a court) may be made by
the Corporation upon a determination that indemnification of the employee or
agent is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in Section 6.01 of these By-Laws. Any such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination (1) by a majority vote of the
Directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by
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majority vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
Section 6.04. ADVANCE PAYMENT OF EXPENSES. Expenses (including
attorneys' fees) incurred by a present director or officer in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the Corpora tion as
authorized in this Article. Such expenses (including attorneys' fees) incurred
by former directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the Corporation deems appropriate.
The Corporation, or in respect of a present director or officer the Board of
Directors, may authorize the Corporation's counsel to represent such present or
former director, officer, employee or agent in any action, suit or proceeding,
whether or not the Corporation is a party to such action, suit or proceeding.
Section 6.05. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND
OFFICERS. Any indemnification of a director, officer, employee or agent of the
Corporation under Sections 6.01 and 6.02 of these By-Laws, or advance of costs,
charges and expenses to such person under Section 6.04 of these By-Laws, shall
be made promptly, and in any event within thirty days, upon the written request
of such person. If a determination by the Corporation that such person is
entitled to indemnification pursuant to this Article is required, and the
Corporation fails to respond within sixty days to a written request for
indemnity, the Corporation shall be deemed to have approved such request. If the
Corporation denies a written request for indemnity or advancement of expenses,
in whole or in part, or if payment in full pursuant to such request is not made
within thirty days, the right to indemnification or advances as granted by this
Article shall be enforceable by such person in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 6.04 of these
By-Laws where the required undertaking, if any, has been received by or tendered
to the Corporation) that the claimant has not met the standard of conduct set
forth in Section 6.01 of these ByLaws, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors or any committee thereof, its independent legal counsel,
and its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
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because he or she has met the applicable standard of conduct set forth in
Section 6.01 of these By-Laws, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors or any
committee thereof, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 6.06. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The
foregoing indemnification provisions shall be deemed to be a contract between
the Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such director, officer, employee or agent.
The indemnification provided by this Article VI shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 6.07. INSURANCE. The Corporation may purchase and
maintain insurance on behalf of any person who is or was or has agreed to become
a director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her or on his or her behalf in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article, PROVIDED that such insurance is available
on acceptable terms, which determination shall be made by a vote of a majority
of the entire Board of Directors.
Section 6.08. SEVERABILITY. If this Article or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each director or
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officer and may indemnify each employee or agent of the Corporation as to costs,
charges and expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action by or in
the right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.01. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street in the City of Wilmington, County of New Castle.
Section 7.02. OTHER OFFICES. The Corporation may maintain
offices or places of business at such other locations within or outside the
State of Delaware as the Board of Directors may from time to time determine or
as the business of the Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. DIVIDENDS. Subject to any applicable provisions
of law and the Certificate of Incorporation, dividends upon the shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors and any such dividend may be paid in cash,
property, or shares of the Corporation's capital stock.
A member of the Board of Directors, or a member of any
Committee designated by the Board of Directors shall be fully protected in
relying in good faith upon the records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by any
of its officers or employees, or Committees of the Board of Directors, or by any
other person as to matters the Director reasonably believes are within such
other person's professional or expert competence and who has been selected with
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reasonable care by or on behalf of the Corporation, as to the value and amount
of the assets, liabilities and/or net profits of the Corporation, or any other
facts pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared and paid.
Section 8.02. RESERVES. There may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board
of Directors from time to time, in its absolute discretion, thinks proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall think conducive to the interest of the
Corporation, and the Board of Directors may similarly modify or abolish any such
reserve.
Section 8.03. EXECUTION OF INSTRUMENTS. The President, any
Vice President, the Secretary or the Treasurer may enter into any contract or
execute and deliver any instrument in the name and on behalf of the Corporation.
The Board of Directors or the President may authorize any other officer or agent
to enter into any contract or execute and deliver any instrument in the name and
on behalf of the Corporation. Any such authorization may be general or limited
to specific contracts or instruments.
Section 8.04. CORPORATE INDEBTEDNESS. No loan shall be
contracted on behalf of the Corporation, and no evidence of indebtedness shall
be issued in its name, unless authorized by the Board of Directors or the
President. Such authorization may be general or confined to specific instances.
Loans so authorized may be effected at any time for the Corporation from any
bank, trust company or other institution, or from any firm, corporation or
individual. All bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors or the President shall authorize. When
so authorized by the Board of Directors or the President, any part of or all the
properties, including contract rights, assets, business or good will of the
Corporation, whether then owned or thereafter acquired, may be mortgaged,
pledged, hypothecated or conveyed or assigned in trust as security for the
payment of such bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation, and of the interest thereon, by instruments
executed and delivered in the name of the Corporation.
Section 8.05. DEPOSITS. Any funds of the Corporation may be
deposited from time to time in such banks, trust companies or other depositaries
as may be determined by the Board of Directors or the President, or by such
officers or agents as may be authorized by the Board of Directors or the
President to make such determination.
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Section 8.06. CHECKS. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
agent or agents of the Corporation, and in such manner, as the Board of
Directors or the President from time to time may determine.
Section 8.07. SALE, TRANSFER, ETC. OF SECURITIES. To the
extent authorized by the Board of Directors or by the President, any Vice
President, the Secretary or the Treasurer or any other officers designated by
the Board of Directors or the President may sell, transfer, endorse, and assign
any shares of stock, bonds or other securities owned by or held in the name of
the Corporation, and may make, execute and deliver in the name of the
Corporation, under its corporate seal, any instruments that may be appropriate
to effect any such sale, transfer, endorsement or assignment.
Section 8.08. VOTING AS STOCKHOLDER. Unless otherwise
determined by resolution of the Board of Directors, the President or any Vice
President shall have full power and authority on behalf of the Corporation to
attend any meeting of stockholders of any corporation in which the Corporation
may hold stock, and to act, vote (or execute proxies to vote) and exercise in
person or by proxy all other rights, powers and privileges incident to the
ownership of such stock. Such officers acting on behalf of the Corporation shall
have full power and authority to execute any instrument expressing consent to or
dissent from any action of any such corporation without a meeting. The Board of
Directors may by resolution from time to time confer such power and authority
upon any other person or persons.
Section 8.09. FISCAL YEAR. The fiscal year of the Corporation
shall commence on the first day of January of each year (except for the
Corporation's first fiscal year which shall commence on the date of
incorporation) and shall terminate in each case on December 31.
Section 8.10. SEAL. The seal of the Corporation shall be
circular in form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 8.11. BOOKS AND RECORDS; INSPECTION. Except to the
extent otherwise required by law, the books and records of the Corporation shall
be kept at such place or places within or outside the State of Delaware as may
be determined from time to time by the Board of Directors.
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ARTICLE IX
CERTAIN TRANSACTIONS
Section 9.01. GENERAL. The provisions of this Article IX are
in addition to, and not in limitation of, the provisions of the Delaware General
Corporation Law and the provisions of the Certificate of Incorporation of the
Corporation. Any contract or business relation which does not comply with
procedures set forth in this Article IX shall not by reason thereof be deemed
void or voidable or to result in any breach of any fiduciary duty to, or duty of
loyalty to, or failure to act in good faith or in the best interests of, the
Corporation, or to result in the derivation of any improper personal benefit,
but shall be governed by the remaining provisions of the Certificate of
Incorporation of the Corporation, these Bylaws, the Delaware General Corporation
Law and other applicable law.
Section 9.02. AFFILIATED PARTY TRANSACTIONS. No contract,
agreement, arrangement or transaction between AT&T or its affiliates (other than
the Corporation and any controlled affiliate thereof) (an "AT&T ENTITY") and the
Corporation, including amendments, modifications or terminations thereof, shall
be void or voidable solely because any directors or officers of an AT&T Entity
are present at or participate in the meeting of the Board of Directors or
committee thereof which authorizes such contract, agreement, arrangement,
transaction, amendment, modification or termination (each a "TRANSACTION") or
solely because his or their votes are counted for such purpose, PROVIDED that:
(a) the material facts as to the Transaction are disclosed or
known to the Board of Directors of the Corporation or any relevant committee
thereof, the Board of Directors or such committee approves it and such approval
includes a majority of the Disinterested Directors of the Corporation;
(b) the Transaction is approved by a majority of the
outstanding shares of the Corporation entitled to vote thereon not owned by an
AT&T Entity, voting together as a single class;
(c) the Transaction is effected in accordance with
arrangements, standards or guidelines that were approved as set forth in (a) or
(b) above; or
(d) the transaction is fair to the Corporation at the time it
is entered into.
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Directors of the Corporation who are not Disinterested Directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors
or of a committee thereof that authorizes or approves any such Transaction or
any such guidelines. Shares of the Corporation owned by an AT&T Entity may be
counted in determining the presence of a quorum at a meeting of stockholders
that authorizes or approves any such Transaction or any such guidelines. No vote
cast or other action taken by any person who is an officer, director or other
representative of AT&T, which vote is cast or action is taken by such person in
his capacity as a director of the Corporation, shall constitute an action of, or
the exercise of a right by, or a consent of, AT&T for the purpose of any such
Transaction.
ARTICLE X
AMENDMENT OF BY-LAWS
Section 10.01. AMENDMENT. These By-Laws may be amended,
altered or repealed:
(a) by resolution adopted by a majority of the entire Board of
Directors at any special or regular meeting of the Board if, in the
case of such special meeting only, notice of such amendment, alteration
or repeal is contained in the notice or waiver of notice of such
meeting; or
(b) at any regular or special meeting of the stockholders if,
in the case of such special meeting only, notice of such amendment,
alteration or repeal is con tained in the notice or waiver of notice of
such meeting.
ARTICLE XI
CONSTRUCTION
Section 11.01. CONSTRUCTION. In the event of any conflict
between the provisions of these By-Laws as in effect from time to time and the
provisions of the Certificate of Incorporation of the Corporation as in effect
from time to time, the provisions of such Certificate of Incorporation shall be
controlling.
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